United States: Two Inch Rule Smaller Than You Think

The Michigan Supreme Court recently decided an issue of importance for municipalities throughout Michigan named as defendants in "slip and fall" lawsuits. In Robinson v City of Lansing (Case No. 138669) (April 8, 2010), the Court held that the "two inch" rule specified in MCL 691.1402(a)(2) applies only to sidewalks adjacent to county highways and not sidewalks adjacent to state highways. The Court's decision relied almost exclusively on the application of canons of statutory interpretation and drew a unanimous majority, with two justices separately concurring.

The case arose from a set of facts familiar to many municipal attorneys. On December 4, 2005, Barbara Robinson tripped on an area of depressed sidewalk adjacent to Michigan Avenue in Lansing, Michigan. She fractured her wrist and required two surgeries.

The alleged sidewalk defect in the case was created by an uneven area of bricks next to a depression. Both plaintiff and defendant agreed that the raised portion of the sidewalk was less than two inches above the depressed portion. Both sides also agreed that the City of Lansing maintained the sidewalk.

Based on these facts, the plaintiff brought a suit alleging an exception to governmental immunity under MCL 691.1402(1), and claiming the defendant had failed to maintain the sidewalk in reasonable repair. In response, the defendant city raised the two inch rule of MCL 691.1402(a)(2) as an affirmative defense. Section 691.1402(a) states:

(2) A discontinuity defect of less than 2 inches creates a rebuttable inference that the municipal corporation maintained the sidewalk, trailway, crosswalk, or other installation outside of the improved portion of the highway designed for vehicular travel in reasonable repair.

(3) A municipal corporation's liability under subsection (1) is limited by section 81131 of the natural resources and environmental protection act, 1994 PA 451, MCL 324.81131.

(Emphasis added).

At the close of discovery in the case, the defendant moved for summary disposition, arguing that the plaintiff had failed to rebut the presumption in subsection (2). The plaintiff, in turn, moved to strike the affirmative defense asserting the exception applies only to sidewalks adjacent to county highways and was not applicable to sidewalks adjacent to state highways, such as the portion of Michigan Avenue at issue. The trial court agreed with the plaintiff and denied the defendant's motion.

On appeal, the Michigan Court of Appeals reversed the lower court and held that the rebuttable inference in subsection (2) applied to sidewalks adjacent to any highway, county or otherwise.

The Michigan Supreme Court overruled the Court of Appeals and remanded the case to the trial court. The Supreme Court held that the two inch rule contained in subsection (2) applied only to defective sidewalks adjacent to county highways.

The Court gave six reasons for its holding. First, the Court looked to the plain language of subsections (1) and (2) and concluded that there was nothing in subsection (2) that suggested it had a different scope than subsection (1), which states that it applies only to county highways. Second, the Court noted that the syntax of subsection (2), particularly the use of the definite article "the" to modify the word "highway" compelled the conclusion that the "highways" in subsection (2) were in fact the "county highways" referred to in subsection (1), and not highways "in general."

Third, the Supreme Court stated that subsection (2) must be read in the context of the entire statutory provision and not in isolation. The Court disagreed with the reasoning of the Court of Appeals that, because the Legislature did not use the word "county" in subsection (2), it did not intend that subsection to be so limited. The Supreme Court stated that the Court of Appeals had erred by examining the provision in isolation and failed to read subsections (1) and (2) "as a whole."

Fourth, the Supreme Court found that a "reasonable person" reading the statute would "understand that all three subsections of this provision apply only to county highways," and that the Legislature was not "required to be overly repetitive in its choice of language."

In a closely related fifth argument, the Supreme Court relied on the interpretative axiom that the same phrase, when used throughout a statute, should be given a consistent meaning. Thus, all references to "the highway" in MCL 691.1402(a) should be interpreted in the same manner. Since the first three references to "the highway" undoubtedly referred to a county highway, there was no reason to depart from this meaning in subsection (2).

Lastly the Court reasoned that its interpretation of the statute was consistent with the interpretive rule against rendering some statutory language "mere surplusage." More precisely, after examining the legislative history of municipal liability with regard to highways, the Supreme Court concluded that unless subsection (2) was interpreted to limit application of the two inch rule, it would merely be a restatement of existing law, and thus meaningless.

While the practical effect of Robinson is clear – the two inch rule applies only to county highways – it would appear that the Supreme Court has given future litigants ample fodder for arguments based on statutory interpretation.

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